Op-ed: Why The Gay Panic Defense Must Go

In every state but one, someone who assaults or even murders an LGBT person can use a panic defense. It's time to put an end to that.

BY D’Arcy Kemnitz

July 23 2014 7:00 AM ET

It’s been more than 15 years since the brutal murder of Wyoming college student Matthew Shepard. For LGBT people and allies alike, Matthew’s murder was a pivotal moment in our country’s understanding of the LGBT community. More than ever before, the nation paid attention to and discussed how our country and our neighbors treat LGBT people.

Much has happened since Matthew’s death, and much of the progress our movement has made can be traced to his legacy and the hard work of his parents, Dennis and Judy Shepard. The landmark hate-crimes legislation signed by President Obama bears his name, and an entire generation of young people rallied around his memory to push for LGBT progress at a previously unimaginable speed.

Despite all of that forward momentum, however, one thing remains the same: too many people still think it is acceptable to defend their violence against our community and our persons by invoking the so-called gay panic or trans panic argument that was famously employed by Matthew’s killers.

Unfortunately, there is no law in any state of the union prohibiting the perpetrators of unspeakable violence from using this blatantly homophobic and transphobic tactic as an excuse for their actions.

As newspapers across the country rightly herald the end of marriage bans, the beginning of open service by lesbian, gay, and bisexual patriots in our armed forces, and a sea change of public opinion on LGBT issues, this heinous tactic still lurks in courtrooms, garnering little attention despite its significant impact and the message it sends.

In 2013 my organization, the LGBT Bar, introduced a resolution at the annual meeting of the American Bar Association, calling on states to outlaw the use of this reprehensible “defense.” The delegates of the ABA — who represent every red and blue corner of the country and every judicial philosophy from Scalia to Ginsburg — approved our resolution without dissent. Legal professionals, regardless of their ideological leanings, understand it is never acceptable to defend violence based on who a victim is.

Yet only California is moving toward passing legislation outlawing this so-called defense; a bill has passed the Assembly and awaits action in the Senate. And while that’s an important start, there is real violence happening to real people in the other 49 states of our union.

Earlier this month, a relative of the suspect in the shooting of Tiffany Edwards, a transgender woman in Cincinnati, told local media that the accused perpetrator in Edwards’s attack “gets an attitude” about gay or trans people “trying to hit on” him. The message was clear: The shooter thought it was perfectly fine to fire a gun at someone because he didn’t like her gender identity.

Exactly one month earlier, in Atlanta, two men violently attacked two transgender women on Atlanta’s public transit system. One of the attackers, Luther L. Thomas, told the media, “These guys [referring to the transgender women] came on to me.”

As a lawyer, I find their excuses inexcusable. As an American, it is a wake-up call that it’s past time to end the so-called panic defense.

The LGBT Bar is working to replicate our advances in California across the country. By working with state attorneys general, and state legislators, we know we can put an end to this unconscionable courtroom tactic. Even before other laws are passed, however, judges have a clear choice, as exemplified by the ABA. They can — and should — instruct juries to disregard any use of the “panic” defense. It would dishonor the memory of Tiffany Edwards, Matthew Shepard, and other victims to even silently imply that “getting an attitude” about LGBT people is sufficient means for violence or murder.

Last autumn, during a panel at Ford’s Theatre in Washington, D.C., marking the 15th anniversary of Matthew Shepard’s death, his mother, Judy, noted that it was when his murderers used the “panic” defense in court that the country finally understood: They actually had no legitimate defense at all. There is no excuse for murder and no legal legitimacy to a defense built on homophobia or transphobia — on ignorance or fear.

As the prosecution of the recent attackers in Atlanta and Cincinnati moves forward, lawyers and judges have a unique opportunity to send a strong message to future would-be perpetrators. If courts in the South and the Midwest refuse to let this “defense” take root, it would be a huge step forward in our movement’s work to win not just legal equality, but indeed, legal validity and respect for LGBT people.

A lot has changed in our country over the past 15 years. But we haven’t changed nearly enough until we’ve said, as a nation, that every life is valuable and no one can be attacked, murdered, or demeaned in our country or our courts because of who they are.

D’ARCY KEMNITZ is executive director of the National LGBT Bar Association, the country’s largest organization of lesbian, gay, bisexual, transgender, and allied legal professionals. The LGBT Bar is an affiliate of the American Bar Association.